| People v Ortiz |
| 2011 NY Slip Op 08783 [89 AD3d 1113] |
| November 29, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Travis J.Ortiz, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.),rendered November 4, 2010, convicting him of robbery in the first degree and criminal possession of acontrolled substance in the seventh degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant challenges the factual sufficiency of his plea allocution. Contrary to the People'scontention, the defendant's waiver of his right to appeal was not valid (see People v Dewberry,223 AD2d 555 [1996]), and therefore, the purported waiver does not bar review of the defendant'sclaim. Nevertheless, the defendant's challenge to the factual sufficiency of his plea allocution isunpreserved for appellate review (see CPL 470.05 [2]; People v Toxey, 86 NY2d725, 726 [1995]), and the "rare case" exception to the preservation requirement does not apply herebecause the defendant's allocution did not cast significant doubt on his guilt, negate an essential elementof the crimes, or call into question the voluntariness of his plea (People v Lopez, 71 NY2d662, 666 [1988]; see People v Young,88 AD3d 918 [2011]). In any event, the facts admitted by the defendant during his plea allocutionwere sufficient to support his plea of guilty (see People v Seeber, 4 NY3d 780, 781 [2005]).
The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligentlymade also is unpreserved for appellate review (see CPL 470.05 [2]; People v Gantt, 85 AD3d 815, 816[2011]). In any event, his plea was knowingly, voluntarily, and intelligently made (see People vFiumefreddo, 82 NY2d 536, 543 [1993]).
Since the defendant pleaded guilty with the understanding that he would receive the sentence whichwas thereafter actually imposed, he has no basis to now complain that the sentence imposed wasexcessive (see People v Kazepis, 101 AD2d 816, 817 [1984]). Dillon, J.P., Dickerson,Leventhal, Austin and Miller, JJ., concur.